Study On The Super-Majority Provision In The Articles Of Association Of Listed Companies

Based on the company's safety requirements,listed companies set up super-majority provision in the articles to prevent hostile takeover.Compared with other anti-takeover measures,the super-majority provision has obvious advantages in two aspects: increased the difficulty of passing a hostile takeover bill;prevented other anti-takeover provisions from being modified.At the same time,it can reduce the cost of anti-takeover,reduce the occurrence of irrational mergers and acquisitions,and optimize the allocation of social resources.However,from the practice of our country,the super-majority provision is applied at a low rate,and some difficulties are encountered.Firstly,there are three theoretically applicable dilemmas: coordinating with the principle of equality of stock rights difficultly;conflicting with the incomplete contract theory,and it may affect the listed companies to make appropriate amendments to the articles of association;increasing the agency cost between shareholders and directors,controlling shareholders and minority shareholders.Secondly,the super-majority provision shows a tendency to go against the evolution of corporate voting rules,and whether it belongs to the scope of article 103 of the Company Law of the People's Republic of China is also controversial.In practice,the negative effects of the super-majority provision,our state's encouraging attitude towards company acquisitions are not conducive to the application of the super-majority provision.In addition to the irregularity of the provision,the bias of regulatory thinking,the deficiency of the basics of anti-takeover system and the difference in value orientation are also significant factors that hinder the development of the super-majority provision.Although the principle of equality and voluntariness is an important principle in the field of private law,the acquirer has the freedom to initiate the purchase,and the shareholders of Target Corp also have the right to decide whether to sell shares.Rather than deciding whether to take an anti-takeover or take a super majority provision with the outsider's attitude,it is better for the rational market participants to judge for themselves.Therefore,the application of the super-majority provision requires regulatory authorities to change their regulatory thinking so as to respect for the law of market development and the choice of the value of market players.It also demands that improve the legislative system of acquisition and anti-takeover in listed companies,establishes fundamental principles of anti-takeover and defines the ownership of the right of the decision to anti-takeover.Through the above means,not only provides institutional basis and applicable scope for the super-majority provision,but also provide guidelines for the listed company to set the super-majority provision properly.At the same time,it is proposed to improve the voting rights of shareholders to protect the shareholders' choice;to clearly the controlling shareholder's fiduciary duty to reduce agency costs,so as to ensure the super-majority provision of the anti-takeover function.